Between 1975 and 1976, EPA published three hazardous
waste disposal damage reports which illustrated
the problems arising from the disposal of hazardous wastes in the United
States. These studies were used by EPA to point out the need for the regulation
of hazardous waste. Congress responded with the Resource Conservation and
Recovery Act (RCRA) of 1976, and the legislative history of that Act contains
many references to these cases. Since EPA has just published regulations
under RCRA (May 19, 1980), I have gone back to these old case studies to
see how well these regulations handle them.

I am sorry to report that of the nine damage cases
studied, at least six of them would not have been prevented by these regulations.
The following is an analysis of those incidents to which the regulations
would not have applied.

1. Dioxin Poisoning

There are no provisions in the regulations either
prohibiting or controlling the spraying of hazardous waste as a dust suppressant.
Thus, the spraying of Missouri horse
arenas with dioxin-contaminated waste oil would not have been prevented.
See attachment 1 from EPA Publication SW-151.2, December 1975. Waste oil
is not currently listed as a hazardous waste by EPA, nor is dioxin a regulated
hazardous waste under Subparts C and D of Part 261. (It is listed in Appendix
VIII to Part 261, but that is only a list of potentially regulated
wastes and does not apply here. Other possibilities are that it might have
been regulated as 2,4,5-T but this is not certain.)

2. Arsenic Poisoning

Nothing in the regulations would have prevented the
contamination of a Perham, Minnesota drinking water well with arsenic.
See attachment 2 from EPA Publication SW-151, June 1975. The waste involved,
a grasshopper bait composed of arsenic trioxide as well as other non-hazardous
substances, is not listed as a hazardous waste, although it probably would
be an EP toxic, since 21 ppm of arsenic was found in the drinking water.
Nevertheless the waste would probably not have been regulated because its
quantity was less than 1000 kg. However if we assume the waste was regulated
and the landfill complied with all RCRA regulations, the incident still
would have occurred.

Subpart G of Part 265 requires post-closure care,
including groundwater monitoring, for a period of thirty years. (The Regional
Administrator may require longer maintenance and monitoring but only if
it is necessary to protect human or the environment; unless the site had
been leaking and the leak had been detected, the longer monitoring would
not have been required.) The damage incident occurred forty years after
disposal.

Subpart G also contains provisions for post-closure
use of the property and provides for a notice in the deed to the property
that the land had been used for hazardous waste disposal. However, these
provisions do not apply to use of adjacent property or protection of adjacent
property owners after the post-closure period. Therefore, the regulations
might have diminished the concentration of arsenic in the water, but they
would not have prevented the post-closure drilling of a drinking water
well on adjacent property, and subsequent contamination of that well.

3. Army Chemical Warfare Wastes

Contamination of the shallow groundwater aquifer
underlying Rocky Mountain Arsenal might also have occurred despite the
regulations. See attachment 3 from EPA Publication SW-151.2, December 1975.
It is unclear from the report what type of chemical warfare manufacturing
wastes were generated by the Army Chemical Corps, and it is not obvious
from the regulations that chemical warfare wastes are included in the hazardous
waste lists. Since the wastes were contained in unlined holding ponds,
the Army and Shell Chemical Co. would have been required to inspect for
and to remedy any deterioration of the impoundment. Regs. 265.266, 265.15(c).
However, it is not clear whether they would be required to clean up or
otherwise render harmless the wastes leaking into the aquifer.

Section 265.15(c) provides that "[w]here a hazard
is imminent or has already occurred, remedial action must be taken immediately."
This provision is vague as to the types of situations to which it applies
and to the types of remedial actions required. As noted above, since the
surface impoundment inspection section contains a specific reference to
265.15(c), deterioration of the physical impoundment must be remedied.
By contrast, no section of Subpart F, Groundwater Monitoring, contains
a cross-reference to 265.15(c).

Nor does Subpart F itself contain any provisions
for remedial action other than implementation of a "groundwater quality
assessment program" via a site-specific plan. Regs. 265.93.(1)

The implementation of the plan is to continue until
closure of the impoundment, but closure is neither a suggested nor a mandatory
remedy. No provision is made for supplying affected persons with alternate
sources of drinking water. Finally, the Subpart D contingency plan for
release of hazardous wastes to the environment conspicuously omits releases
to groundwater.

4. Destruction of Water Supply

Since the regulations do not now provide for closure
and post-closure trust funds or for performance surety bonds, there is
no assurance that money would be available to remedy groundwater contamination
if such action is in fact required. Monetary costs associated with contamination
of an aquifer are high; for example, over $400,000 in direct costs were
accrued when the state of New Jersey discovered that the Cohansey Aquifer
had been contaminated by hazardous wastes dumped on farmland. See attachment
4 from EPA Publication SW-151-3, June 1976. This applies to Rocky Mountain
Arsenal as well. In effect, then, the regulations will not prevent this
type of groundwater contamination situation.

5. Chemical Industrial Waste Dumping

There are also no provisions in the regulations which
would have prevented the dumping of hazardous wastes into a sand pit in
Crosby, Texas. See attachment 5 from EPA Publication SW-151.2, December
1975. Of the wastes involved -- from oil refineries, petrochemical, chemical,
and other industries -- some are included in the regulations, such as steel
mill pickling liquor, and some are not. If the wastes had been disposed
of in a landfill, the 265.314 requirements for landfilled liquid wastes
would have applied. The Subpart K requirements applicable to the situation
do not contain special provisions for liquid wastes, for soil types and
porosity, for impoundment liners, or for other special containerization
of the liquids. Disposal into an unlined sand pit is not prohibited. Groundwater
monitoring may or may not have detected contamination of the underlying
aquifer, but groundwater monitoring is not required for another year and
as discussed above, the regulations do not adequately provide for remedial
action in such a situation.

6. Volatile Waste

Another damage-causing problem not currently addressed
by the regulations is volatilizing wastes. Volatilization of landfilled
hexachlorobenzene wastes in Louisiana led to expenditures of over $380,000
and delayed marketing of 30,000 head of contaminated cattle, See attachment
6 from EPA Publication SW-151.3, June 1976. The regulations require safeguards
against wind dispersal of contaminants but not against volatilization.
Regs. 265.302(d); 45 Fed.Reg. 33,204 (May 19, 1980). Thus, the regulations
would not have prevented this damage incident, either.

In conclusion, many of the damage cases which were
used by EPA to justify passage of RCRA would not have been prevented if
the regulations recently promulgated to implement RCRA had been in effect
at the time. In some of the cases, the wastes themselves are not regulated.
In others, the wastes are regulated, but the method of disposal is not
regulated or is not regulated in such a way as to prevent the release of
the hazardous wastes. And in still other cases, especially the groundwater
situations, the failure of the regulations to mandate remedial action ensures
that the damage will not be prevented.

Attachments

cc: Steff Plehn

1. Implementation of the plan is triggered by a finding
of significant increases in levels of contaminants using the student's
T test; the test, however, because it is designed to eliminate false positives
might never have triggered the plan.